Thailand's Nine Judges: Ruling Through Monarchy, Deflecting Responsibility

Thailand's Constitutional Court has perfected invisible governance. When constitutional reform is blocked, when political parties dissolve, when democratic processes halt, the public sees one obstacle—the monarchy. Yet behind every restriction justified as "protecting the Crown" stands a court whose judges remain unaccountable, whose reasoning often goes unwritten, whose power exceeds any institution in Thailand's political landscape. How has Thailand's Constitutional Court made the monarchy own—and take blame for—their rulings? The answer reveals institutional ventriloquism—a court that speaks through the Crown, transferring both sovereign power and public criticism to an institution it claims to protect.

Hans Kelsen envisioned constitutional courts as judicial bodies bound by constitutional text and legal reasoning. Carl Schmitt countered that adjudicating constitutional disputes makes courts political players because constitutions contain competing values. Thailand's Constitutional Court proves both theorists partially correct and entirely insufficient. The court operates as Schmitt predicted—as a political player—but wears Kelsenian judicial robes, exploiting the legitimacy of "legal reasoning" to transfer sovereign ownership from the people to the Crown. Professor Worachet Pakeerut suggests that if Schmitt were resurrected, he would hold up Thailand's Constitutional Court as vindication: constitutional courts become political players, not neutral arbiters. But Thailand's court has achieved something neither theorist predicted—it plays politics while making another institution take responsibility. This represents a third category beyond the judicial-political binary: a court that builds power structures using judicial materials, then makes other institutions own those structures while maintaining its own invisibility.

This pattern distinguishes Thailand from other constitutional courts facing similar tensions. Germany's Federal Constitutional Court and South Africa's Constitutional Court have faced accusations of political involvement, particularly when reviewing contentious legislation or election disputes. But these courts rule transparently in their own name, publish detailed reasoning, and bear direct accountability for controversial decisions. India's Supreme Court, despite criticism for judicial overreach, openly claims authority through public interest litigation and does not systematically attribute its power to another institution. Thailand's innovation lies not in judicial activism itself, but in the displacement mechanism—the court governs while making the monarchy appear as the governing force, systematically deflecting responsibility for its exercise of power.

The 2021 Constitutional Court ruling against pro-democracy activists marks this ownership transfer's culmination. While deciding whether activists' calls for monarchy reform constituted an attempt to overthrow the state, the court declared that "sovereign power belongs to the monarchy, not the people." The 1932 revolution's foundational principle was judicially revoked without referendum, without amendment. One might argue the court merely interpreted existing constitutional text regarding "democratic regime with the King as Head of State." But Professor Worachet describes this phrase as having meaning "broader than all oceans combined"—precisely because its vagueness permits the court to choose among competing interpretations. By selecting an interpretation that transfers sovereignty from people to monarchy, the court made a political choice while presenting it as legal necessity. Sovereignty had been judicially transferred, and the monarchy—not the court—would be held responsible for this foundational shift.

This operates through institutional ventriloquism. The court does not claim power for itself; it attributes power to the monarchy. The court's 2024 decision prohibiting direct election of constitutional drafters exemplifies this mechanism. Professor Worachet notes the court simply "pounded the table," declaring parliament "cannot allow the people to directly elect constitutional drafters." No explanation. No legal logic. The monarchy becomes the visible face of this restriction while nine judges remain unseen. When citizens protest this prohibition on democratic participation, their frustration targets the Crown—the institution invoked to justify the restriction—rather than the judges who imposed it without reasoning.

Constitutional Dispossession by Judicial Fiat (1997- 2017)

The transformation becomes stark when comparing the 1997 and 2017 Constitutions. The 1997 "People's Constitution" imposed minimal restrictions on constitutional amendment. The Constitution Drafting Assembly faced one limitation: not drafting provisions that changed the democratic regime with the King as Head of State. Crucially, if disputes arose, parliament—not any court—would decide. Political actors resolved political questions. This reflected a democratic principle: those who exercise constituent power should be accountable to citizens through elections.

The 2017 Constitution, born from the 2014 coup, reversed this entirely. Constitutional amendment now requires multiple referendums, faces expansive Constitutional Court review, and operates under vague prohibitions the court interprets without reasoning. Professor Worachet notes the bitter irony: a coup-born constitution required one referendum for legitimacy, but democratically amending that constitution demands three. These barriers are justified as protecting the monarchy—making the Crown, not the court, appear as the obstacle.

The Constitutional Court's Decision No. 18/2568 mandates three referendums for drafting a new constitution. The court permits combining the first two but provides no reasoning for this structure. Professor Worachet's critique is direct: "A much better question is: will you abolish or not abolish the 2017 Constitution? Which no one will be allowed to ask." The court has structured the process to make new constitution-making effectively impossible while appearing to respect popular sovereignty. Defenders might argue these procedures ensure careful deliberation and prevent hasty constitutional change. But the asymmetry reveals the mechanism's true function: a coup-installed constitution faces minimal barriers, while democratic amendment faces insurmountable ones. The monarchy appears as the beneficiary, bearing public criticism for frozen constitutionalism that nine judges engineered.

This pattern extends beyond referendum requirements. The court's 2014 decision on constitutional amendment under the 2007 Constitution illustrates two decades of consistent practice. The court ruled that amending the constitution required a referendum—despite no constitutional provision requiring this—because the 2007 Constitution had been approved by referendum. The court created new procedural barriers through interpretation, attributed these barriers to protecting constitutional legitimacy, and made subsequent governments responsible for complying with judicially-imposed restrictions. When the Yingluck Shinawatra government attempted constitutional amendment, the court's intervention contributed to the political crisis that preceded the 2014 coup. Again, the monarchy appeared as the constitutional order being protected, while the court wielded decisive political power.

Professor Worachet identifies a fundamental principle the court violates: "Prohibition isn't allowed." If the court will not permit direct election of constitutional drafters, it must explain why. The absence of reasoning in Decision No. 18/2568 violates Section 73 of the Constitutional Court Procedures Act, which mandates decisions contain "reasoning for deciding on each issue." Without reasoning, scholars cannot review the court's power. Citizens cannot understand why their rights are constrained. The monarchy bears blame for restrictions it did not impose. Only the court benefits, wielding power without accountability.

Thailand's Constitutional Court regularly issues binding press releases before producing actual written judgments. Parliament must comply while the decision text remains incomplete for weeks or months. Professor Worachet has criticised this for over twenty years—since his 2003 research report—yet it persists, justified by Section 76 declaring decisions take effect on voting day rather than publication day. This means the court's rulings reshape political possibilities before anyone can read the reasoning. The monarchy, not the court, appears as the agent of change while judges maintain invisibility.

Governance Through Proxy, Accountability Through Deflection

If Kelsen were resurrected, he might struggle to classify Thailand's Constitutional Court. It uses legal forms and maintains institutional independence but initiates processes without clear petitions (the oath-taking case), rules beyond what petitioners request (the CDA election prohibition), and decides cases without reasoning (the direct election ban). These are not failures but features of an institution that has transcended the judicial-political binary. Kelsen would see judicial form hollowed of judicial substance—a court that maintains procedural legitimacy while abandoning the reasoning requirement that makes judicial power accountable.

Schmitt might observe the court has learned to be a political player while maintaining judicial legitimacy by making another institution take ownership of its decisions. This is governance through proxy. The court discovered that political power is most secure when invisible, and responsibility most effectively deflected when another institution owns the consequences. Yet even Schmitt, who predicted constitutional courts would become political actors, did not anticipate this innovation: a court that achieves political dominance not by claiming authority openly but by attributing that authority elsewhere.

One might object that the court genuinely believes it protects constitutional order by invoking monarchy as a stabilising force. Perhaps judges sincerely interpret "democratic regime with the King as Head of State" to require expansive monarchical authority. But sincerity of belief does not eliminate the mechanism's effects. Whether intentional or not, the court's pattern of ruling in the monarchy's name while providing no reasoning creates systematic displacement of accountability. The monarchy becomes vulnerable to criticism for decisions judges make, while judges remain institutionally protected. Even if judges believe they protect the Crown, the protection operates by making the monarchy own restrictions that generate public resentment—a paradox that endangers the institution they claim to shield.

Professor Worachet's assessment is stark: "We cannot expect excellence anymore under this kind of system." The 1997 Constitution arose through political struggle and democratic mobilisation. The current amendment process occurs where the Constitutional Court has already determined the boundaries of possibility, prohibited direct democratic participation, and required multiple referendums before any substantive change materialises. Throughout, the monarchy—not the nine judges who designed these barriers—remains the visible obstacle to democratic aspiration.

Conclusion: Invisible Authority, Visible Scapegoat

Thailand's Constitutional Court has achieved what neither Kelsen nor Schmitt anticipated: governance that exercises political power by transferring ownership of its decisions to another institution while maintaining judicial neutrality. The court controls constitutional sovereignty while making the monarchy responsible for that control. The 2021 ruling that reversed 1932's foundational principle of popular sovereignty illustrates this perfectly—a judicial decision of immense political consequence attributed to protecting the monarchy, ensuring public criticism targets the Crown rather than the nine judges who made the ruling.

The monarchy owns constitutional sovereignty not because it claimed that power, but because nine judges transferred it through the 2021 ruling. The people lack constituent power not because they surrendered it, but because the court took it through impossible procedural requirements (three referendums versus one for a coup constitution) and vague prohibitions interpreted without explanation. The court's two-decade pattern of issuing binding press releases before publishing reasoned decisions ensures this power operates before accountability mechanisms can engage. When citizens protest, they target the Crown—the visible owner—rather than the court that orchestrated the transfer.

This represents a form of constitutional governance distinct from both democratic and authoritarian models. Unlike democratic constitutional courts that rule transparently and bear accountability for controversial decisions, Thailand's court systematically deflects responsibility. Unlike authoritarian courts that openly serve regime interests, Thailand's court maintains judicial independence while transferring political consequences to another institution. The result is a constitutional order where the actual source of power remains invisible, where accountability is systematically displaced, and where democratic reform becomes structurally impossible—all while maintaining the formal architecture of constitutional democracy.

Schmitt and Kelsen debated whether constitutional courts would be guardians or players. Thailand's nine judges have proven to be neither and both: guardians that govern, players that hide, interpreters that transfer ownership while deflecting blame. They rule through monarchy's shadow, leaving it holding responsibility. They have created a form of judicial power that neither democratic theory nor authoritarian practice adequately describes—a court that achieves absolute authority by making another institution appear to wield it. This is institutional ventriloquism at its most sophisticated: judges speak, the monarchy answers, and citizens blame the voice they hear rather than the source that produces it.

Prem Singh Gill
Fellow, Royal Asiatic Society of Great Britain and Ireland